| Contract conditions of FIDIC are a set of model texts specially applied to international engineering, which were laid down on the basis of ACE at the beginning of20th century by federaltion international des ingenieurs-conseils fidic after absorbing the experience of all kinds of experience of international engineering. In1999, federaltion international des ingenieurs-conseils fidic published a set of novel contract conditions, which coexisted with other contract conditions being applied. And this set of new texts include the followings:Dredgers Contract; Short Form of Contract; Construction Contract; Plant&DB Contract; DBO Contract; and EPC/Turnkey Contract. Details are available in the FIDIC Bookshop. FIDIC also publishes the Client/Consultant Model Services Agreement together with the Sub-Consultancy Agreement and the Joint Venture Agreement. In the September of2007,"Design-build operation (DBO) contract", which put DB and service part into a single contract,(Gold Book) beta was published. The official copy of The Gold Book (the first edition) was published in2008.These contract conditions of FIDIC has been broadly accepted and applied in the international circle when they come into being for these conditions’scientific, impartial and rigor merits. The World Bank, the Asian Development Bank, and the foreign Government loan project, often require the use of these contract conditions in project management. The contractor of international engineering contracting projects, international financial organizations, and project owners also regard these conditions texts as the normative documents and widely use them as the "Bible of international contracting project". China National Association of Engineering Consultants joined FIDIC in1996as the representative of China, become a foil member of the FIDIC. In our country, some domestic large-scale construction project began to use FIDIC text of the contract, and our construction contracting business projects in overseas are also required to use FIDIC contract text.On the viewpoints of the practice of construction projects, construction projects involve a number of risk factors and risk sensitivity, and the construction industry has always been known as the "risk enterprise", especially the large engineering project. In order to prevent and risk and share risk, contract conditions of FIDIC contains special clause of risk bearing, which is the core of FIDIC contract and is said "drafted on the basis of risk bearing among business entrepreneur and contractors". Therefore, in the theoretical and practical sense, it is very important to study risk bearing clause in this thesis.On the basis of particularity of construction project contract, the first part of this thesis mainly reflects and reviews on the theory of the contract risk burden among tradition contractual theory, which regards business contract as its center. According to the traditional theory of risk bearing, the connotation of risk means damage and loss of the intension of the risk for the subject matter, which surely applies to the contract of sale and however can’t apply to bilateral contract because there are no subject matter in this kind of contract. Even there appear some problems in bilateral contract with subject matter because of damage and loss of material presented by hirer and contractor. As to construction contract, there are also some risk problems of the extension of construction time and increased cost, and according to the traditional theory of risk bearing, risk bearing only happens when payment can’t be achieved. In regarding with sales or purchase contract, the loss of subject matter often leads to supervening impossibility of performance. If the reason is not attributable to both parties, the problem of the risk burden will happen. However, for construction contracts such as the FIDIC contracts, construction object is damaged or lost due to reasons not attributable to the parties, since this happens due to impossibility and risk burden. However, if the reason is not attributable to both parties, and it does not cause damage and loss of subject matter, but the "delay" problems lead to the loss or expense, which also belongs to the risk burden; according to the traditional theory of risk bearing and the nature of the risk of price risk, this theory is applicable to the sale contract without problems. But for other bilateral contracts, not only it’s no price, but also the characteristics are different from the contract for the sale of its existence. For the contract, since the delivery of the work done before or after the completion of the work, for reasons not attributable to the parties for the semi-finished or finished products damaged or destroyed, if does not constitute an impossibility, the contractor is still difficult to release its work in debt, and cannot therefore obtains reward request right markup the contractor, it should not only bear the risk reward, should also bear the payment risk; the traditional civil law theory think, reason of risk should be limited to and can’t be attributed to both parties. However, according to the book, the scene data even if the employer negligence and make it available to the Contractor does not have the accuracy, adequacy and completeness, employers to also do not assume any responsibility, all the risks caused by the contractor.The second part of this thesis particularly is a comparative studies on risk burdening clause of the new red book and the book since the risk burdening clause of the new red, yellow, green book of contract conditions of the1999FIDIC, are almost the same, and the risk of a new book is unique. Although the new red book and the book to take different policy, the former provisions for the abnormal conditions of the site is not predictable, the risk to be borne by the employer, or otherwise, shall be borne by the contractor; the latter provides all the Contractor’s risk. Also many scholars hold critical opinions on Leucaena book because such provisions contains the "Pro employer" attitude, which is unfair for the contractor. However, the FIDIC is still insist on its own way because with the development of construction form, such as the BOT (Build Operate Transfer), appeared as a new kind of construction project contract, private financing lenders generally are unwilling to face such risks, and they hope the the project is feasible in financial terms be a reliable return. Even if a majority of risks are allocated to the Contractor’s fixed price lump sum contract, this case means that the owners will pay higher fees for the construction of the project, and the silver book FIDIC contract conditions just meet this demand.The third part of this thesis is a comparative study on the irresistible force terms because1999FIDIC contract conditions comprehensively introduce irresistible force in view of the irresistible force are the main reasons leading to the risk of1999FIDIC contract conditions. In the analysis of the FIDIC contract conditions, the thesis insists that provisions that the FIDIC conditions of contract is not only more operational, but also fair and reasonable through a comprehensive introduction of necessity of resistance in terms of1999FIDIC contract conditions in the study and comparison with the "Convention on the international sale of goods","principles of international commercial contracts" and "principles of European Contract Law" the relevant provisions of the comparative study, that the1999FIDIC condition of contract can not be defined resistance and its components are scientific and reasonable.Because the "special conditions" nineteenth (irresistible) in the FIDIC conditions of contract states:"in the tender, the employer shall verify the wording and jurisdiction of contract law does not contradict the." This shows that validity depends not force majeure clause of the contract law about the provisions on jurisdiction of irresistible force system is mandatory or arbitrary provisions. For this reason, force majeure clause are specially discussed in the forth part. In view of the fact that in the continental law system countries or regions of the civil code, incorporated construction project contract into contract except for China’s "contract law" separates construction project contract from the contract. However, in real life, often have the contractor provides material conditions, especially in the so-called "construction contract" contractor, this makes the distinction between contract and contract of sale is difficult. In this part of the comparative analysis of Germany, Japan and China’s Taiwan region based onthe contract and the contract of sale on the standard of differentiation, the1999FIDIC conditions of contract risk burden in terms of the continental law system and contract risk burden were compared in this study, that the civil law adopted by "hit to undertake the risk" rules, i.e. the contractor to take risks in business rules, especially the unprecedented development of the construction industry has been the contractor contracting package materials become the norm today, the contractor is too harsh. Also because of this, Germany, Japan and other countries through the establishment of a contract for construction project standard contract or demonstration text, on the basis of FIDIC contract condition experience, on the civil law of the contract risk bearing rules are modified.The fifth part has a comparative study on risk bearing terms of the NEC and AIA in view that the NEC and AIA contract text is generally used for the construction project contract text, and it has been used in the text of the contract in China’s construction engineering practice. Although the FIDIC conditions of contract is the comprehensive factors determining the risk allocation, while the NEC contract is taken by the management risk allocation, but the NEC contract text first introduced the "partnership and cooperation" the management idea, the establishment of early warning system of early risk, try to turn the employer and the contractor disputes to a minimum. It is to promote the project management as an important goal of the contract, to establish a cooperative profit, not cooperation mechanism for the owners and contractors, and to find the path to solve the problem and active cooperation in question rather than blame each other for error of each other in order to ask for additional payment profit, this is undoubtedly beneficial to the project.In the international arena, FIDIC contract and NEC contract started increasing com-petition; AIA text mining contract although law and economics risk allocation, no special provisions of irresistible force, but its risks in the stipulated insured by the owners of the property insurance, but it is completely feasible because we can not resistance of the consequences, either by the contractor or the employer, are required to handle the insurance.The sixth part mainly is a comparative study on contract risk burden clause of the relevant provisions of FIDIC conditions and of the current law of our country and the text of the model in view that FIDIC conditions of contract have been applied into the in construction projects contracts in China and the Chinese construction enterprises in foreign countries and our country construction,Ministry of housing and urban rural development, the State Administration for Industry and Commerce for standardizing the order of the construction market, the construction contract signing behavior guidance to parties, maintenance construction contract litigant’s legitimate rights and interests, on the basis of FIDIC contract condition formulated the "construction contract (model version)", on the relevant provisions of FIDIC conditions of contract risk burden clause and the current law of our country and the text of the model. On the basis of this study, the thesis holds that the current laws in our country and the text of the model need to be further perfect, and on the basis of comparative analysis, the thesis puts forward to modify or perfect opinions. |
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